Opinion · Court of Appeals for the Fifth Circuit

Patricia C. Carroll v. United States of America

721 F.2d 155

Type
Opinion
Court
Court of Appeals for the Fifth Circuit
Jurisdiction
Federal
Date
1983-12-16
Topic
bankruptcy

ON PETITION FOR REHEARING PER CURIAM: Treating the suggestion for rehearing en banc as a petition for panel rehearing, the petition for rehearing is granted. The intervening decision by the Supreme Court in Bush v. Lucas, — U.S. —, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), requires the recall of our original opinion. In Bush v. Lucas, the Supreme Court declined “to authorize a new nonstatutory damages remedy for federal employees whose First Amendment rights are violated by their superiors,” because the claims there presented arose out of “an employment relationship governed by comprehensive procedural and substantive provisions.” Id., — U.S. at —, 103 S.Ct. at 2406, 76 L.Ed. at 651.

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Cited by
6 opinions
CARROLL v. UNITED STATES,721 F.2d 155(5th Cir. 1983)
PATRICIA C. CARROLL, PLAINTIFF-APPELLANT, v. UNITED STATES OF AMERICA, ET
AL., DEFENDANTS-APPELLEES.
No. 81-1540.
United States Court of Appeals, Fifth Circuit.
December 16, 1983.
Page 156
Angel Gassaway, Steven M. Angel, San Antonio, Tex., for plaintiff-appellant.

Anthony W. Vaughn, Asst. U.S. Atty., Fort Worth, Tex., Barbara L. Herwig, Edward R. Cohen, Appellate Staff, Civ. Div., Dept. of Justice, Washington, D.C., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Texas.
[1] ON PETITION FOR REHEARING
[2] (Opinion June 20, 1983, 5 Cir., 1983,707 F.2d 836)
Before INGRAHAM, REAVLEY and POLITZ, Circuit Judges.
PER CURIAM:
[3] Treating the suggestion for rehearing en banc as a petition for panel rehearing, the petition for rehearing is granted. The intervening decision by the Supreme Court inBush v. Lucas,___ U.S. ___,103 S.Ct. 2404,76 L.Ed.2d 648(1983), requires the recall of our original opinion.

[4] InBush v. Lucas,the Supreme Court declined "to authorize a new nonstatutory damages remedy for federal employees whose First Amendment rights are violated by their superiors," because the claims there presented arose out of "an employment relationship governed by comprehensive procedural and substantive provisions."Id.,___ U.S. at ___,103 S.Ct. at 2406,76 L.Ed. at 651.Bushv. Lucasinvolved an employee complaining of an adverse personnel action allegedly triggered by public statements of the employee. Administrative remedies were available and were exercised. The instant case involves a former employee who complains of mistreatment in reemployment because of union activity during the prior period of employment. A measure of administrative remedies was available and was exercised.

[5] We cannot make a principled distinction between an employee and a former employee seeking re-employment, in the context as here presented, sufficient to base a holding that the teachings ofBush v. Lucasdo not control. We considerBush v. Lucasdispositive.

[6] The judgment of the district court is AFFIRMED.Page 478